Lister v. Wright — 2 Hill & Den. 320

Majority

p. 320

Lister vs. Wright.

Headnote

In general, personal actions, whether sounding in tort or contract are transitory, and in declaring, the matter may be laid as having'taken place in the county where the action is to be tried, without any reference to the place where the thing really happened ; and this, whether the matter occurred in this state or elsewhere.

Accordingly, under a declaration in slander, which alleged the words to have been spoken at Greece, in the county of Monroe, the plaintiff was allowed to prove, as a substantive cause of action, that the words were spoken at Darlington in Upper Canada.

Otherwise, in certain cases, where the place is matter of description.

Whether the courts of this state ought to take cognizance of an action for slanderous words spoken in Canada, if both parties are British subjects, quere.

An action for slanderous words will lie by one citizen of this state against another, though the words were spoken in Canada.

The parties to an action will be presumed citizens of this state, until the contrary appears.

In slander, the defendant cannot be allowed to prove the existence of former controversies between him and the plaintiff in mitigation of damages.

p. 321

Slander, for charging the plaintiff with being a murderer, thief and robber, and having committed forgery. The words were laid to have been spoken on, «fee., to wit, at Greece, in the county of Monroe. On the trial, before- Dayton, C. Judge, at the Monroe circuit, in April, 1841, the plaintiff proved the speaking of the words at Greece, as laid in the declaration. He then offered to prove in aggravation of damages, and also as a substantive cause of action, the like words spoken of the plaintiff in the town of Darlington, in the province of Upper Canada. The defendant objected, but the judge overruled the objection, and the evidence was given. The defendant proved that he and the plaintiff had had litigation and controversy several months before the speaking of the words. The judge charged the jury that they should receive the evidence of speaking the words in Canada, as well as in Greece, to maintain the action; and that they should not take into consideration the litigation and controversy between the parties, in mitigation of damages. Verdict for the plaintiff, $100. The defendant now moved for a new trial on a casa

C. M. Lee, for the defendant.

G. H. Chapin, for the plaintiff.

By the Court,

As to the words spoken in Canada, it is said that the pleader should have alleged the speaking to have been at Darlington, in the province of Upper Canada, to wit, at Greece, in the county of Monroe; and as the words are not so laid, they could not be given in evidence. But personal actions, whether sounding in tort or in contract, are, in general, transitory; and the matter may be laid to have taken place in the county where the action is to be tried, without any reference to the place where the thing really happened. And this is so, whether the matter occurred in this state or elsewhere. There is an exception to this rule, where the place is matter of description; but that has nothing to do with this case.

p. 322

(Smith v. Bull, 17 Wend. 323 . Gould’s Plead. 119, 120. Mostyn v. Fabrigas, Cowp. 161. 1 Chit. Plead. 306, 7, ed. of 1837.) In Mostyn v. Fabrigas, the trespass was alleged to have happened at Minorca, to wit, at London. But a part of the injury complained of, was the banishment of the plaintiff from the island of Minorca to Carthagena in Spain, which made it necessary for the plaintiff in declaring, to notice the real place where the wrong was done. But for that circumstance, Lord Mansfield said, the plaintiff might have stated it to-be in the county of Middlesex.

Whether we ought to take cognizance of an action for slanderous words spoken in Canada, if the parties were British subjects, is a question which does not arise in this case. (See Mostyn v. Fabrigas, Cowp. 161; Rafael v. Verelst, 2 W. Black. 1055; Gardner v. Thomas, 14 John. R. 134; Pisani v. Lawson, 6 Bing. N C. 90.) As nothing appears to the contrary, these parties must be taken to be citizens of this state; and if one of our citizens goes into Canada and slanders his neighbor, there can be no doubt that an action will lie in this state when the defendant returns into our jurisdiction.

The former controversies between the parties had nothing to do with this slander, and could have no legal tendency to mitigate damages.

New trial denied.

Cases cited

Smith v. Bull 17 Wend. 323 N.Y. Sup. Ct. p. 322